SUPERIOR COURT OF JUSTICE – ONTARIO
IN THE MATTER OF THE ESTATE OF BOZENA OPARA, deceased
RE: Thomas Opara, Applicant
AND:
Michael Opara, Respondent
AND:
AND IN THE MATTER OF THE ESTATE OF DARINKA PESTOTNIK (also known as Doreen Pestotnik), deceased)
RE: Lara Pestotnik, Applicant
AND:
Tom Opara, Elena Opara and Michael Opara, Respondents
AND:
RE: Michael Opara, Plaintiff
AND:
The Estate of Bozena Opara, Thomas Opara, Lara Pestotnik, Mike Pestotnik, The Estate of Darinka Pestotnik, Robert A. L. Shour, Shibley Righton LLP, Mathew Urback and Clayton Hudson, Defendants
BEFORE: L. A. Pattillo J.
COUNSEL:
Anne Posno, for the Applicant, Lara Pestotnik
Gavin Tighe, for the Non Parties
Natalie Schernitzki, for the Respondent, Michael Opara
HEARD: September 24, 2014
ENDORSEMENT
Introduction
1There are two motions before the court, one by Lara Pestonick (“Lara”) and the other by counsel for some of the other parties to these proceedings in their personal capacity and by Shael Eisen (“Eisen”) in his capacity as Estate Trustee During Litigation for the estate of Bozena Opara. The moving parties seek an order quashing summonses served by Michael Opara (“Michael”) in support of his motion to set aside various consent orders of Justice D. M. Brown dated March 28 and 31, 2014 (the “Duress Motion”). The Duress Motion is scheduled to be heard on October 17, 2014.
Background
2This motion arises out of lengthy and ongoing litigation involving the estates of Darinka Pestotnik who died on May 22, 2012 and Bozena Opara who died on July 29, 2010. The deceased were sisters. The two estates jointly hold one asset, a house at 29 Maxwell Avenue in Toronto (the “Property”).
3Bozena had two sons, Michael and Thomas Opara (“Thomas”). Darinka Pestotnik had a granddaughter, Lara. Michael has been engaged in litigation with Thomas and Lara over the estates since 2012. At the material time there were three proceedings:
a) Court File 01-2289/12 (the “Opara Estate Application”);
b) Court File 01-2338/12 (the Pestotnik Will Challenge”); and
c) Court File CV-12-489717 (the “Tortious Interference Action”).
4On March 27, 2014, the parties and/or their counsel appeared before Justice Brown concerning various motions brought by the parties in each of the three proceedings. Eisen attended as the proposed Estate Trustee During Litigation for the Opara estate. The following were also in attendance:
Campion on behalf of Lara;
Jason Cherniak (“Cherniak”) and Robert Isles (“Isles”) on behalf of Michael who was also present;
Angela Casey (“Casey”) on behalf of Thomas;
Susan Sach (“Sach”) on behalf of Robert Shour who had previously acted for Lara and who had been sued by Michael in the Tortious Interference Action;
Jason Squire (“Squire”) on behalf of Shibley Righton, Matthew Urback and Clayton Hudson who had previously acted for Thomas and who has also been sued by Michael in the Tortious Interference Action.
5As a result of discussions between counsel and Justice Brown in the courtroom, the parties left the courtroom and engaged in settlement discussions. On March 27 and 28, 2014, individual settlements were reached in the three proceedings and minutes of settlement were prepared and signed by the parties or counsel on their behalf. Michael signed personally.
6The settlements provided, in part, for the appointment of Eisen as Estate Trustee During Litigation of the Opara estate and a court approved sale of the Property.
7On March 28 and 31, 2014, consent orders were obtained from Justice Brown in accordance with the terms of the settlements (the “Orders”).
8In April, 2014, Michael advised counsel that he intended to bring an “urgent” motion in the three proceedings to set aside the Orders on the basis of judicial duress. The Duress Motion was served on May 6, 2014 and was returnable June 10, 2014 together with a cross-motion by Eisen for directions regarding the sale of the Property.
9The Duress Motion was heard by Justice Greer on June 10, 2014. At the outset, Michael sought an adjournment of his motion. Following submissions, Justice Greer indicated she was not prepared to adjourn the entire motion. In the end, Justice Greer dismissed Michael’s motion to set aside the consent dismissal of the Tortious Interference Action and refused to remove Eisen as Estate Trustee During Litigation. The balance of the Duress Motion was adjourned to October 17, 2014 with costs payable by Michael. Michael has appealed Justice Greer’s decision to the Court of Appeal.
10In or around June 30, 2014, Michael served a Summons to Witness on each of Campion, Sach, Squire, Casey and Eisen to examine them as a witness in support of the Duress Motion. In response, Lara, on behalf of Campion and the other counsel and Eisen brought these motions to quash the summonses.
Analysis
11The practice of summonsing counsel for the opposing party to testify against their client is the exception and should be avoided wherever possible. Such a course should only be resorted to where the administration of justice demands it: R. v. 1504413 Ontario Ltd., 2008 ONCA 253; 90 O.R. (3d) 122, at para. 14, quoting R. v. Colbourne, 2001 4711 (ON CA), [2001] O.J. No. 3620 (C.A.).
12At a minimum, such a step requires a high degree of materiality and necessity: 1504413 Ontario Ltd., at paras. 13 and 17.
13Eisen is a lawyer. While he was not acting as counsel to any party in the three proceedings, he was present on March 27, 2014 as the proposed Estate Trustee During Litigation and was subsequently appointed as part of the settlement. He did not attend on March 28. As an officer of the court, I see no reason why the above standard regarding summoning opposing counsel in a proceeding should not apply to him as well.
14Michael submits at paragraph 54 of his factum that the case law demonstrates that to succeed on the Duress Motion, he must adduce evidence from the parties and counsel present in the courtroom regarding:
a) The conduct of the presiding judge including his tone, demeanor and attitude;
b) Counsel’s knowledge or awareness of the duress and/or coercion;
c) Counsel’s observations with respect to how the Michael was affected by the conduct of the presiding judge;
d) Whether Michael protested at the time the contract was entered into;
e) Whether, after entering into the contract, Michael took steps to avoid it; and
f) Whether the presiding judge presented as a neutral referee.
15It is the above information that Michael’s counsel submits she wishes to obtain from the other parties counsel who were present on both March 27 and 28, 2014. The evidence sought from Eisen is confirmation that during the events of March 27, Michael told Eisen that he intended to appeal or object to any decision made by Brown J.
16In support of his submission that the evidence sought is relevant, Michael primarily relies on Ruffudenn-Coutts v. Coutts, 2012 ONSC 6438 (Ont. S.C.). While evidence concerning the above points may be relevant on a motion to set a contract aside for duress, I don’t read the decision as supporting the proposition that a party can summons opposing counsel to obtain it. In my view, the reference to evidence from counsel refers to the applicant’s counsel. In that regard, evidence with respect to the above areas of inquiry is already before the court in the Duress Motion.
17In support of the Duress Motion, Michael has filed a lengthy affidavit setting out in detail what occurred inside and outside the courtroom on March 27 and 28, 2014 and his reactions to it. He has also filed a transcript along with an audio tape of the proceedings on March 27, 2014. Finally, he has filed affidavits from both of his counsel at the time, Cherniak and Isles, who were present on both days. Their evidence covers what occurred in the courtroom and Michael’s reaction to it.
18Counsel for Michael conceded that she did not know what the answers of counsel would be to the above questions and that the answers she obtained could hurt Michael’s Duress Motion as opposed to help it. On that basis, I consider the proposed examinations amount to no more than a fishing expedition.
19As noted, Eisen’s evidence is sought to confirm that Michael told him at some point on March 27 that he intended to appeal or object to any decision by Justice Brown. But Michael has related that conversation in his affidavit and it has not been challenged.
20In the circumstances, I am unable to find that the proposed evidence is relevant, let alone highly material.
21Nor do I think the proposed evidence meets the test of necessity. In 1504413 Ontario Ltd., at para. 17, Armstrong J.A., on behalf of the court, sets out a non-exhaustive list of factors to consider in respect of necessity. The factors include the importance for which the testimony is sought, the degree of controversy surrounding the issue, the availability of other witnesses to give the evidence, the potential disruption of the trial process and the overall integrity of the administration of justice.
22On every factor mentioned, the proposed evidence sought from the counsel and Eisen in this matter cannot be considered necessary. As noted, the evidence sought has already been put before the court by Michael and his former counsel. More importantly, there is both a transcript and audio recording of the events on March 27 which is the primary date complained of. As a result, I do not consider the evidence sought from counsel and Eisen to be important for the Duress Motion. Nor is does the proposed evidence deal with anything controversial. Michael’s evidence has not been challenged.
23I am also troubled by the impact that the summonses would have on the Duress Motion and on the litigation in general. If counsel are required to give evidence on the motion, it follows they cannot appear as counsel on the motion. There would be a conflict between their role as counsel and as a fact witness. The result would be that Lara and Thomas would have to retain new counsel for the Duress Motion which would cause further delay and added expense. Michael has already caused them to retain new counsel (in Lara’s case three times) as a result of bringing their counsel into the proceeding as parties. There is simply not a lot of money in the estates to fund multiple counsel.
24On June 3, 2014, Michael’s new counsel wrote to the counsel to advise that they had been retained and would be filing further materials which necessitated a change in lawyers. The letter went on to say: “We also intend to conduct examinations of parties present in the courtroom on March 27 & 28, 2014 which may also necessitate a change in the representation of other parties.” That statement coupled with Michael’s prior history of icing Lara and Thomas’ lawyers, cause me to conclude that the serving of the summonses was more tactical than necessary.
25In the circumstances, it is my view that the administration of justice demands not that the summonses be upheld but rather that they be quashed.
Conclusion
26For the above reasons, the motions are allowed. The summonses to Campion, Casey, Sach, Squire and Eisen are quashed.
27The moving parties seek costs on a substantial indemnity basis. Michael submits that the costs should be on a partial indemnity basis. The service of the summonses was ill-conceived. The evidence sought was not material nor was it necessary. More importantly, I consider the step to have been taken primarily to cause delay and expense to the other parties. In my view, substantial indemnity costs are in order.
28I have received two cost outlines from the moving parties, one from Mr. Tighe who was retained by Eisen and all counsel except Campion and the other from Ms. Posno who acted for Campion. Mr. Tighe claims substantial indemnity costs of $19,640.97 and Ms. Posno $21,869.71. I have also received a costs outline from Michael’s counsel claiming $8,500 for partial indemnity costs.
29The estates in issue are modest. The moving parties should not be required to pay fees generated through no fault of their own. However, I do not consider that awarding two sets of costs to the moving parties is appropriate. Based on the material filed and the argument before me, it is my view the interests of all the moving parties were aligned. There must be some sense of proportionality having regard to the factors set out in Rule 57.01(1). As a result, I award one set of costs to the moving parties, on a substantial indemnity basis, fixed at $20,000, inclusive of disbursements and taxes. I leave it to the moving parties and their counsel to determine the appropriate allocation. Payable forthwith.
L. A. Pattillo J.
Released: September 26, 2014